Case Name: David & Sonja Marcus v. Carl & Diana Farsai
Case No.: 17CV307794

This is a dispute between neighbors over the continued existence of an easement and the attempted construction of a new fence in that easement area.

Plaintiffs David and Sonja Marcus (“Plaintiffs”) own a house located at 22210 Quinterno Court in Cupertino. Plaintiffs allege that they originally purchased the property in 1986 and that they were aware when they did so “that the original owner of the subdivision who lived in the house behind Plaintiffs’ Property reserved an easement extending 20 feet onto Plaintiffs’ Property for ‘Yard Purposes.’ A fence was constructed along the 20 foot strip and there was shared fencing along the public street. A copy of the deed reserving the 20-foot strip is attached herein as Exhibit ‘A’.’ (Complaint at ¶5.) Plaintiffs further allege that when Defendants Carl & Diana Farsai (“Defendants”) bought the house behind them (10106 Carmen Road, Cupertino) in 2004 “the deed transferring the Defendants’ property expressly excluded the easement area described in Exhibit ‘A’ hereto. A copy of the Farsai deed is attached hereto as Exhibit ‘B.’ . . . [W]hen Defendants purchased Defendants’ property in 2004, Defendants caused to be prepared and recorded a Record of Survey which clearly showed that the fence was encroaching 20 feet onto Plaintiffs’ property. A copy of the Record of Survey is attached hereto as Exhibit ‘C.’ In or about the beginning of 2016 Defendants demolished all the street fencing that runs from Defendants’ Property to Plaintiffs’ Property and began construction of heavy concrete foundations in its place. . . . Plaintiffs . . . sent letters to Defendants . . . [requesting] that Defendants remove the concrete foundation and move the fence back to the property line. Defendants have refused to cooperate, despite the clear evidence that the easement was rescinded, thus necessitating this action.” (Complaint at ¶¶ 6-10.)

Plaintiffs’ original and still operative Complaint filed March 24, 2017 states three causes of action: 1) Negligent Trespass; 2) Willful Trespass, (alleging that Defendants either intentionally or recklessly “allowed the fence foundation to encroach on Plaintiff’s property”) and; 3) Declaratory Relief and Permanent Injunction (seeking a declaration that “the Yard Easement was expressly excluded in the deed to Defendants” and a permanent injunction “compelling Defendants to remove the encroachment described herein from Plaintiffs’ Property”).

The Grant Deed (exhibit B to the Complaint) by which Defendants acquired their property does not “expressly exclude the easement” over Plaintiffs’ property in the manner Plaintiffs allege. Instead the “legal description” attached to the deed (as exhibit A) includes language stating “[e]xcepting therefrom that portion thereof, as granted to Monta Vista Properties, a General Partnership, by Deed recorded December 19, 1983 in Book 1158, Page 183 of Official Records, described as follows . . .” It does not reference any easement and interpreting it as “expressly excluding” the “yard use” easement as Plaintiffs do simply because it references the grant deed containing the easement is not a reasonable construction.

Defendants filed a cross-action, alleging that they remain the owners “of an easement appurtenant to [their property, 10106 Carmen Road, Cupertino]. The easement consists of a right of ‘YARD USE,’ including all normal and and/or customary uses that would be associated with a residence back yard, overly the Westerly 20 feet of Lot 103 of said Map of Inspiration Point Monta Vista, and affording Cross-Complainants such use of the property.” (Cross-Complaint at ¶6, brackets added.) The original and still operative Cross-Complaint filed April 26, 2017 states two causes of action: 1) Quiet Title (seeking “a determination of their title to the easement in this action as of the date of Cross-Defendants’ Complaint on March 24, 2017”), and; 2) Declaratory Relief (seeking a declaration “setting forth the respective ownership interests, rights, obligations and responsibilities as to the easement between the two properties.”) A copy of the Dec. 19, 1983 recorded Grant Deed conveying what became Plaintiffs’ property from the original owner, Agnes Cowger, to the developer Monta Vista Properties, is attached to the Cross-Complaint as exhibit A. The portion of the deed creating the easement through express reservation states: “The grantor herein reserves second easement for ‘YARD USE,’ including all normal and/or customary uses that would be associated with a residence backyard, over the Westerly 20 feet of Lot 103 of said Map of Inspiration Point Monta Vista.”

Requests for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) Both sides here have submitted requests for judicial notice.

Defendants have submitted three separate requests, none of which state the specific basis for the request other than referencing Evidence Code §§452 & 453. Their first request (for notice of seven documents attached as exhibits A-G) submitted in support of their motion is granted in part and denied in part as follows. Notice of Exhibit A (a copy of Plaintiff David Marcus’ discovery responses that the request misidentifies as a copy of Plaintiffs’ Complaint) is DENIED.

Notice of exhibits B, D, E & F, copies of recorded grant deeds, is GRANTED pursuant to Evidence Code §§452(c) & (h). Evidence Code §452(c) states that the court may take judicial notice of “any official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” This has been interpreted to include documents recorded by a government department. “The court may take judicial notice of recorded deeds.” (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549. See also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-65 [stating that “a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language . . . [and, f]rom this, the court may deduce and rely upon the legal effect of the recorded document”], disapproved on other grounds in Yvanona v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.)

Notice of exhibits C and G is DENIED. The document attached to the request as exhibit C is not a copy of a recorded grant deed as the request claims. Exhibit G is both illegible and not a recorded document.

Defendants’ second request, submitted with their opposition to Plaintiffs’ motion, is a request for judicial notice of a copy of Plaintiffs’ Complaint (attached as exhibit A). Notice is GRANTED pursuant to §452(d).

Defendants’ third request, submitted with their Reply, for judicial notice of a declaration by Carl Farsai in opposition to Plaintiffs’ motion, is DENIED for two reasons. First, the moving party may not submit additional evidence with the reply. Second, declarations may not be judicially noticed as to their contents (which is what is sought here). (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 [court may take judicial notice of existence of declaration but not of facts asserted in it]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [court may not notice the truth of declarations or affidavits filed in court proceedings]). The mere existence of Mr. Farsi’s declaration is irrelevant to the material issues before the Court.

Plaintiffs’ request for judicial notice of 12 documents (exhibits A-L), submitted in support of their motion for summary judgment, also fails to state any specific basis for judicial notice other than citing Evidence Code §§451 and 452, and §452(d) (though none of the submitted documents are court records). Plaintiffs’ request is GRANTED in part and DENIED in part as follows. Notice of exhibits C and G-L, copies of recorded documents, is GRANTED pursuant to Evidence Code §452(c) & (h). Notice of exhibits A, B, and D-F (copies of tract maps and portions of such maps) is DENIED as Plaintiffs have not identified any specific basis for judicial notice.

Motions for Summary Judgment/Adjudication
The pleadings limit the issues presented for summary judgment/adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) For example, Plaintiffs’ argument in support of their motion that the Subdivision Map Act has been violated is not a basis for granting summary judgment as there is no such allegation in their Complaint.

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

Cal. Rule of Court 3.1350(b) states in pertinent part: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The Court cannot weight the credibility of declarations when ruling on summary judgment. “Typically in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 881.)

The moving party may generally not rely on additional evidence filed with its reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant [or cross-defendant] moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [brackets added, internal citations omitted].)

Where a Plaintiff moves for summary judgment/adjudication, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (See CCP §437c(p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, disapproved on other grounds in Aguilar; S.B.C.C., Inc. v. St. Paul Fire & Marine, Ins. Co. (2010) 186 Cal.App.4th 383, 388.) This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not. “Otherwise, he would not be entitled to judgment as a matter of law.” (Aguilar, supra at p. 851; LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776 [burden is on plaintiff to persuade court there is no triable issue of material fact].) It is not part of a moving plaintiff’s initial burden to disprove affirmative defenses and/or cross-complaints asserted by a defendant. (CCP §437c(p)(1); Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 565.)

Neither party can rely on its own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication. (See College Hospital, Inc. v. Sup Ct. (1994) 8 Cal.4th 704, 720, fn. 7; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054. However, either party may rely on admissions of fact contained in the opposing party’s pleadings as evidence. (See 24 Hour Fitness, Inc. v. Sup. Ct. (1998) 66 Cal.App.4th 1199, 1211; Valerio v. Andrew Youngquist Const. (2002) 103 Cal.App.4th 1264, 1271. Unequivocal admissions in pleadings are treated as “judicial admissions”—i.e., they are conclusive and cannot be controverted by the pleader. (Heater v. Southwood Psychiatric Ctr. (1996) 42 Cal.App.4th 1068, 1079-1080.) Here the Court notes that Plaintiffs’ Complaint contains the admission (at ¶5) that Plaintiffs were aware of the “yard use” easement when they purchased their property.

Summary judgment may be had in a declaratory relief action since the propriety of the application of declaratory relief lies in the trial court’s function to render such a judgment when only legal issues are presented for its determination. (Las Tunas Beach Geologic Hazard Abatement Dist. v. Superior Court (1995) 38 Cal.App.4th 1002, 1015.) “When seeking summary judgment on a claim for declaratory relief, the defendant must show that the plaintiff is not entitled to a declaration in its favor by establishing ‘(1) the sought-after declaration is legally incorrect; (2) [the] undisputed facts do not support the premise for the sought-after declaration; or (3) the issue is otherwise not one that is appropriate for declaratory relief.’ If this is accomplished, the burden shifts to the plaintiff to prove, by producing evidence of, specific facts creating a triable issue of material fact as to the cause of action or the defense.” (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1307-1308, citing Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402.)

As an initial matter both motions are for summary judgment only, as neither side’s motion complies with Cal. Rule of Court 3.1350(b). Regarding Defendants’ motion, the request for summary adjudication in the alternative of three of Plaintiffs’ claims listed in Defendants’ Notice of Motion at p. 2:1-5 is not repeated “verbatim” or at all in Defendants’ Separate Statement. Accordingly it is a motion for summary judgment only. As for Plaintiffs’ motion, the four purported “issues” for summary adjudication in the alternative listed in Plaintiffs’ Notice of Motion at p. 2:8-16 are not repeated “verbatim” or at all in Plaintiffs’ Separate Statement. Therefore it is also a motion for summary judgment only. As motions for summary judgment only, each motion will be denied unless the moving party establishes a complete absence of triable issues of material fact as to all claims.

1. Defendants’ Motion for Summary Judgment
Defendants’ motion for summary judgment only is DENIED for failure to meet the initial burden to establish a complete absence of triable issues of material fact. Triable issues clearly remain as to the correct characterization of the easement, its continued existence, and whether—assuming its continued existence—Defendants’ intended use of the property covered by the easement may be in excess of the permission granted and may constitute a trespass.

“An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other’s land. An easement creates a nonpossessory right to enter and use land in another’s possession and obligates the possessor not to interfere with the uses authorized by the easement. An easement may be created by (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision.” (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1053-1054 [internal citations and quotation marks omitted].) The easement at issue here was created by express reservation in the December 19, 1983 recorded Grant Deed (exhibit A to the Complaint) transferring title to what later became Plaintiffs’ property from Agnes Cowger to Monta Vista Properties.

An easement is either appurtenant or in gross. “An easement is appurtenant when it is attached to the land of the owner of the easement and benefits him or her as the owner or possessor of that land. . . . An easement in gross is not attached to any particular land as dominant tenement, but belongs to a person individually.” (12 Witkin, Summary of Cal. Law (11th ed. 2017) Real Property §397, internal citations omitted.) A transfer of real property passes all easements attached to the property. (Id. at §406; Civil Code §1104.) “Easements are property rights, and, where appurtenant to land, are transferable and descendible. Transfers may be express or by implication, as where land is transferred and all appurtenant easements are deemed to go with the grant without express mention.” (Id. at §434; Civil Code §1104.)

The evidence submitted does not establish that the easement was “in gross” as Plaintiffs suggest and only belonged to Agnes Cowger during her lifetime. “The determination of whether an easement is appurtenant or in gross is made by reference to the instrument creating it.” (6 Miller & Starr, Cal. Real Estate (4th ed. 2016) Easements §15:8.) The grant deed transferring the parcel that would become Plaintiffs’ property to Monta Vista Properties does not contain any language suggesting the retained “yard use” easement was only for Agnes Cowger’s personal benefit such that it would only exist during her lifetime. An easement is presumed to be appurtenant. “[W]here the grant of an easement is ambiguous and the intent of the grantor cannot be ascertained, the law presumes that the easement is appurtenant. A court will not find an easement to be in gross in any case where it can be construed reasonably to be appurtenant to another parcel of land. When the easement is an appropriate and useful adjunct to another parcel of land owned by the owner of the easement, the courts generally have concluded that it is an appurtenant easement.” (Id.) The “yard use” easement can certainly be considered “useful” to Defendants’ property and is therefore presumptively appurtenant. As an appurtenant easement it would travel with the property regardless of whether it was expressly mentioned in any subsequent transferring instrument.

“Extinguishment of an easement acquired by deed requires the concurrence of three elements: nonuse, intention to abandon, and damage to the owner of the servient estate.” (12 Witkin, Summary of Cal. Law (11th ed. 2017) Real Property §438, citing Cottonwood Duplexes, LLC v. Barlow (2012) 210 Cal.App.4th 1501, 1509.) Plaintiffs have not submitted evidence establishing all three elements necessary to find extinguishment. Technically Plaintiffs have failed to submit any evidence in support of their opposition to Defendants’ motion. Instead their opposition improperly cites to evidence submitted months earlier in support of their own motion. Even if that evidence is considered in evaluating Defendant’s motion it does not establish extinguishment. “It has always been the law in California that ‘[a]n easement acquired by deed is not lost by mere non-user. ‘It must be accompanied with the express or the implied intention of abandonment, and the owner of the servient estate, acting upon the intention of abandonment and the actual non-user, must have incurred expenses upon his own estate. The three elements, non-user, intention to abandon, and damage to the owner of the servient estate, must occur in order to extinguish the easement.’” (Cottonwood Duplexes, LLC, supra, 210 Cal.App.4th at p. 1509, internal citations omitted.)

However, even assuming for purposes of argument that the “yard use” easement remains in effect, that does not establish that Plaintiffs’ trespass claims fail as a matter of law as Defendants argue, and Defendants are not entitled to summary judgment.

The continued existence of a “yard use” easement does not bar Plaintiffs from being able to establish the essential elements of a trespass claim: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry on the property; (3) lack of permission to enter the property, or acts in excess of the permission; (4) actual harm; and (5) the defendant’s conduct as a substantial factor in causing the harm. (See CACI No. 2000.) “Trespass is an invasion of the plaintiff’s interest in the exclusive possession of land. . . . An easement ‘represents limited privilege to use the land of another . . . but does not create an interest in the land itself.’ ‘An easement involves primarily the privilege of doing a certain act on, or to the detriment of, another’s property.’ An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership. Thus, ‘[t]he owner of an easement is not the owner of the property, but merely the possessor of a ‘right to use someone’s land for a specified purpose . . .’” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173-1174, internal citations omitted.)

Thus, even if it is assumed that Defendants still have a valid easement that does not prevent Plaintiffs from establishing their continued “ownership” of the property necessary for their trespass claims as Defendants argue. “The rights of an easement owner are measured by the purpose and character of the easement. The right to use the underlying land remains in the owner of the servient tenement, insofar as it is consistent with the purpose and character of the easement. In other words, the easement owner has only those rights of enjoyment specifically established by the grant or use and, if the easement was created by grant, such additional rights as are incidental and reasonably necessary to its use. When exercising the rights to use an easement, the owner of the easement must give due regard to the rights of the owner of the servient estate. The owner must use the easement in the manner that imposes the least burden on the servient tenement. He or she cannot do anything that causes unreasonable injury to the servient tenement or that interferes with the servient owner’s use of the property.” (6 Miller & Starr, Cal. Real Estate (4th ed. 2016) Easements §15:66, internal citations omitted)

“The owner of the dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement. Every incident of ownership not inconsistent with the easement and the enjoyment of the same is reserved to the owner of the servient estate.” (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702 [internal citations omitted].) “Where one has permission to use land for a particular purpose and proceeds to abuse the privilege, or commits any act hostile to the interests of the lessor, he becomes a trespasser.” (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1780.)

Defendants’ attempted construction of a replacement fence on land still owned by Plaintiffs, even if within the area subject to the yard use easement, could be construed by a reasonable finder of a fact as an act “in excess of the permission granted” by the easement described in the Dec. 19, 1983 grant deed: “all normal and/or customary uses that would be associated with a residence backyard.” Accordingly, at a minimum triable issues of material fact remain as to Plaintiffs’ trespass claims.

2. Plaintiffs’ Motion for Summary Judgment
Plaintiffs’ motion for summary judgment only is also DENIED for failure to meet their initial burden. Plaintiffs have not produced evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not. Plaintiffs have not established that they are entitled to the sought after declaration “that the Yard Easement was expressly excluded in the deed to Defendants,” and triable issues clearly remain as to their trespass claims. As discussed above triable issues remain as to the correct characterization of the easement, its continued existence (which may depend on its characterization) and whether—assuming its continued existence—Defendants’ intended use of the property covered by the easement may be in excess of the permission granted and may constitute a trespass.

There is a triable issue as to whether the easement on Plaintiffs’ property created by express reservation in the Dec. 19, 1983 recorded grant deed was “in gross” or “appurtenant” (the submitted evidence suggests the easement is presumed to be appurtenant as a matter of law as nothing in the grant deed suggests it was intended to be in gross). If the easement is appurtenant than it is deemed to have traveled with the property regardless of whether it was expressly mentioned in subsequent transfer documents and could not be extinguished merely by not being mentioned in subsequent conveyances. Furthermore “[e]xtinguishment of an easement acquired by deed requires the concurrence of three elements: nonuse, intention to abandon, and damage to the owner of the servient estate.” (12 Witkin, Summary of Cal. Law (11th ed. 2017) Real Property at §438, supra.) Plaintiffs have only submitted evidence, the declaration of Sonja Marcus, suggesting that one of the three elements—non-use—might exist and that evidence is contradicted by the declaration by Defendant Carl Farsai submitted with Defendants’ opposition. The Court cannot weigh the credibility of conflicting declarations in ruling on summary judgment. The Court also notes that Plaintiffs themselves admit that “[a]bandonment is a question of fact for the trial court or the jury.” (Plaintiffs’ Memo. of Points and Authorities at p. 14:10-11.)

Even if the easement is presumed be appurtenant and to have not been abandoned, triable issues remain on Plaintiffs’ trespass claims as a reasonable finder of fact could either find: 1) that Defendants’ intended use of the easement area is in excess of the permitted use; or 2) that such use is consistent with the terms of the “yard use” easement (uses “including all normal and/or customary uses that would be associated with a residence backyard”)

As also noted above Plaintiffs’ argument in their motion that the subdivision map act was violated is not a basis for granting summary judgment as the argument is outside the scope of the pleadings—there are no such allegations in the Complaint. This conclusion applies equally to the assertion in Plaintiffs’ motion that Defendants’ use of the easement area might constitute a “taking.”